Surrogacy laws in India: A balancing act

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Until recently India was a popular destination for gay and lesbian couples wanting to give birth to a child through surrogacy. However, new laws mean that gay couples and singles will no longer be able to seek a surrogate mother in India. The new surrogacy laws in India highlight the balancing act that is sometimes involved with surrogacy.

The new surrogacy laws in India

The new surrogacy laws in India state that only couples who have been married for at least two years will be allowed to access a surrogate living in India. Plus, the couple must be from a country where surrogacy is legal.

These new rules make it very difficult for same-sex couples to proceed with surrogacy. Same-sex marriage is only legal in a handful of countries. Plus, surrogacy is illegal in many countries.

What are lesbian, gay and bisexual rights like in India?

Lesbian, gay and bisexual rights in India are limited. Consensual sex between two gay men was illegal up until 2009. Gay marriage continues to be illegal. In India any baby born through surrogacy will not be legally recognized when born for a same-sex couple.

How popular is surrogacy in India?

There are many fertility clinics in India. Reports reveal that there are about 1,000 clinics. The medical costs associated with surrogacy in these clinics are also lower in India as compared to many other countries. These factors made India a very popular destination for prospective lesbian and gay parents in the past.

Although robust data regarding how many same-sex couples or LGB individuals access surrogacy in India is not available, some sources report that approximately one third of those that sought surrogacy services in India in the past were lesbian or gay-identifying.

In total, approximately 50,000 people who are seeking surrogate mothers visit India each year and approximately 2,000 live surrogate births take place as a result.

Considering all aspects of surrogacy in India

Critics of the surrogacy industry in India often draw comparisons between the surrogacy industry and human trafficking. The Director of the Centre for Social Research in New Delihi, Ranjana Kumari, highlights that “often contracts are not honored. So if the clinic is willing to pay, say, £5,900, to the surrogate, she is ultimately paid £2,360 while the rest of the money is taken by the middle man who manages the deal.”

Supporters of the new rules say that the new rules will help protect the rights of the surrogate mother, the baby and the intending parents. However, at the same time, the new surrogacy laws in India generally rule out the option of surrogacy to same-sex couples. For many lesbian and gay parents the new rules don’t protect their rights. The new rules restrict their rights.

Plus, as many lesbian and gay-identifying individuals and couples make good parents, it is unclear how these new laws are in the best interest of any potential child.

A balancing act

The controversy around the new surrogacy laws in India highlights a number of considerations for lesbian, gay and bisexual individuals and couples. For example, it highlights the intricacies involved in balancing the wish to have a baby, the welfare of the child and the surrogate. It highlights how restrictions to our human rights in our own country of origin can also influence our rights in another country. Plus, it raises issues of our role in changing or perpetuating global inequities for ourselves and others.

References

Chaudhuri M. New Indian visa rules exclude single people and gay couples from child surrogacy. BMJ 2013;346.

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